Dying US soldier fighting for the right to sue military over medical malpractice

Sgt. 1st Class Richard Stayskal survived three combat deployments to Iraq and even an enemy bullet through the chest. But now the dying Purple Heart recipient says he's enduring one of the toughest fights of his life: the right to sue the U.S. government for medical malpractice.

“This isn’t about the money. This is about accountability. You can’t say whoops and play with people’s lives and say nothing can be done,” Stayskal, who is stationed at Fort Bragg, North Carolina, told Fox News. “Right now, I am being deprived of my rights as a U.S. citizen. An inmate can sue for medical malpractice, but as a member of our military, I cannot.”

The now 37-year-old’s ordeal began in January 2017 as he was preparing to head to dive school and was ordered to have a CT scan, given the wound he suffered in Iraq about 13 years earlier.

Sgt. 1st Class Richard Stayskal, father-of-two, survived three combat deployments to Iraq and even an enemy bullet through the chest. But now the Purple Heart recipient is facing the toughest battle of his life: the right to sue the U.S. government for medical malpractice.

Sgt. 1st Class Richard Stayskal, father-of-two, survived three combat deployments to Iraq and even an enemy bullet through the chest. But now the Purple Heart recipient is facing the toughest battle of his life: the right to sue the U.S. government for medical malpractice. (Megan Stayskal)

“I was having a little trouble breathing, some coughing and wheezing but I passed the test just fine,” he recalled.

Only his symptoms quickly started to become worse.

The ensuing six months, Stayskal said, brought a series of medical mishaps, including being misdiagnosed with pneumonia, shuffled among a variety of doctors and dismissed from the emergency room -- despite having a notable mass on his lung, throat bleeding and excruciating pain.

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Concerned superiors in his chain-of-command finally demanded that Stayskal be able to seek help off-base, a process that took several more weeks and red tape, he said. All the while, the true cause of his dwindling health continued to ravage his body.

Finally, in late June 2017, the diagnosis came, some six months after his first appointment. The father-of-two had stage three lung cancer, and the mass had doubled in size and spread to the left side of his neck, spleen, lymph nodes, liver and his right hip joint.

Stayskal, after almost 17 years of service -- first as a Marine and later as a Special Forces soldier in the Army -- is no longer able to finish a warrant officer course and is in the process of being medically discharged. But amid the family's search for answers and any legal recourse, he learned he could not take his medical malpractice case to a court of law.

What stands in the way is the Feres Doctrine – which was born out of a 1950 Supreme Court case – which was put in place to block a deluge of lawsuits against the government for injuries sustained in combat or in military training.

Happier times: Rich and his wife Megan, with their two daughters.

Happier times: Rich and his wife Megan, with their two daughters.

But it also prevents service members and their families from seeking legal recourse for ailments caused by negligence under the military medical system. Furthermore, the doctrine stops service members from being able to seek accountability from a chain of command that may have been lax in preventing a harmful incident in the first place.

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Despite being now classified as having stage four and terminal cancer, and with only months to live, Stayskal says he's determined to keep fighting -- not just for himself, but so other families don't have to endure the same bureaucratic roadblocks.

Following emotional testimony in front of the House Armed Services Subcommittee on Military Personnel on April 30, a bi-partisan bill named after Stayskal has since been introduced and is working its way through Congress.

The Sergeant First Class Richard Stayskal Military Medical Accountability Act of 2019 would protect the Feres Doctrine’s original mission -- not opening the floodgates for a service member to sue based on job or battlefield-related injuries -- but ultimately would allow military service members to sue the Department of Defense for “instances of medical malpractice unrelated to their militaries duties.”

“For nearly 70 years, service members have not been able to sue military medical providers after being misdiagnosed, mistreated, or subjected to botched surgeries, even though this malpractice occurred in health care settings in which all other Americans have that right,” said Rep. Jackie Speier, D-Calif., who introduced the new legislation. “By creating an exemption to allow service members to sue the military for medical malpractice, the Stayskal Act would give service members the same right as the fellow citizens they serve to protect.”

The bill is also co-sponsored by Republican Rep. Richard Hudson, whose congressional district includes Fort Bragg. The Feres Doctrine can only be reversed through a Supreme Court decision or an act of Congress.

Stayskal is represented by Natalie Khawam of the Tampa-based Whistleblower Law Firm, who took the case after the soldier said he and his wife contacted numerous attorneys across the country who simply told them nothing could be done.

“This is not just a military issue, this is an equal rights issue,” Khawam told Fox News. “I believe most Americans would be shocked to learn that inmates can sue the government for medical malpractice but that our great soldiers who risk their lives for our country cannot sue for medical malpractice unrelated to combat duty.”

Rich and his wife Megan following his testimony in Washington D.C. on April 30th

Rich and his wife Megan following his testimony in Washington D.C. on April 30th (Megan Stayskal)

She said her firm in recent months has received calls from hundreds of victims and their families informing them of the harrowing experiences they suffered at military hospitals.

Standing alongside Stayskal in pushing back against the decades-old legislation is 29-year-old Capt. Katie Blanchard – who allegedly cautioned her superiors for months about an Army civilian working for her at Fort Leavenworth in Kansas – before being doused in gasoline and set on fire by that individual in September 2016. Blanchard is unable to sue despite having had to endure more than 100 surgeries.

Also working to change the law is Alexis Witt – the widow of Staff Sgt. Dean Witt, who died after receiving a fatal dose of fentanyl and allegedly having a breathing tube incorrectly forced down his esophagus during what should have been a standard appendectomy.

“We are just hoping to gain support from legislators who see this as unjust and withholding of our rights,” Stayskal said.

Sgt. Rich Stayskal undergoing treatment for stage four cancer

Sgt. Rich Stayskal undergoing treatment for stage four cancer (Megan Stayskal)

Stayskal's wife, Megan, and their two daughters, ages 10 and 12, are providing support as Stayskal fights what may be his last battle.

“We aren’t trying to abolish the Feres Doctrine, we know that it serves a purpose as far as wartime goes,” Megan said. “But at home, our servicemen and women deserve full rights.”

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A petition to promote the bill has already attracted over 100,000 signatures. Moreover, a Washington D.C. march to further the cause and honor Stayskal, along with other military members and their families who are enduring similar circumstances, is slated for June 12. It's set to go from Freedom Plaza to the National Mall.

The DOD did not immediately respond to Fox News' request for comment.